Ban lawsuits that hurt legal gun industry

Congressional legislation to ban junk lawsuits against law-abiding
firearms manufacturers and sellers is long overdue. Most states,
Pennsylvania included, already have such laws.

The junk lawsuits are a direct assault on First Amendment rights. Among
the victims of the suits are the firearms industry trade associations,
such as the National Shooting Sports Foundation. None of these
organizations sells or makes guns. Instead, the organizations' activities
consist almost exclusively of exercising First Amendment rights to conduct
public education campaigns, get-out-the-vote drives, and other free
speech.

Suing someone in revenge for their lawful exercise of First Amendment
rights is known as a SLAPP - a Strategic Lawsuit Against Public
Participation. Many legislatures have enacted laws against such litigation
abuse, and congressional action against one particular form of SLAPP is a
good first step towards a nationwide ban on all SLAPPs.

At an American Bar Association symposium in 1999, one of the
plaintiffs' attorneys for the antigun lawsuits explained that the
attorneys had read the Dun & Bradstreet reports on the firearms companies,
estimated how much the companies could spend defending themselves against
litigation, and then filed so many cases in so many jurisdictions that the
gun companies would not be able to spend the money to see the cases
through to a verdict.

Even if all the gun companies in America were put together, they would
not constitute a single Fortune 500 company, so the gun companies are much
more vulnerable to abusive litigation than deep-pocketed giants such as
McDonalds or the New York Times.

Firearms are the most heavily regulated consumer product in America.
They are the only consumer product for which a retailer must obtain FBI
permission in advance for every single sale. Retailers must also keep
records on every gun sold to every customer. The federal gun laws alone
comprise 75,000 words - the size of a book. State gun laws are larger
still.

The congressional tort reform would in no way restrict lawsuits against
anyone who violates any gun law. For example, straw sales have been
illegal ever since the Gun Control Act of 1968. In a straw sale, a
prohibited person (e.g., a convicted felon) uses a straw purchaser to buy
the gun for him. Any firearms dealer who knowingly participates in a straw
sale commits a major federal felony. Someone injured as a result of the
dealer's crime should have every right to sue the dealer, and the bill
would preserve that right.

Likewise, a company that makes a gun that is actually defective would
still be liable. But it should not be possible to try to bankrupt gun
companies with suits claiming that making guns or operating a gun store,
in strict conformity with all laws, constitutes a "public nuisance." Nor
should it be possible to sue companies for not including gun accessories
which haven't even been invented.

The lawsuits even target firearms companies for making guns that are
especially well-suited for personal protection, such as compact, light
handguns good for carrying for self-defense, as is legal in Pennsylvania
and most other states.

The main reason our Constitution grants Congress the power to "to
regulate commerce... among the several States" is so Congress could stop
local actions that interfered with lawful commerce. Congress also has the
power (and the duty) under Section Five of the Fourteenth Amendment to act
against local actions that infringe on the Second Amendment and the
right-to-bear-arms guarantees in the Pennsylvania Constitution - as well
as almost every other state constitution.

There is no right to file abusive lawsuits that chill the exercise of
constitutional rights. That is why the Supreme Court, in the 1964 case New York Times v. Sullivan, restricted libel suits that infringed on
First Amendment rights. Pennsylvania, like most other states, has enacted
legislation affirming that gun laws should be made by the legislature, not
by trial attorneys trying to end-run the democratic process.

The Senate bill would in no way limit the expansion of gun-control
laws; it would simply ensure that new restrictions are created through
open debate in our legislatures.

Dave Kopel, columnist for National Review Online, is coauthor of "Gun
Control and Gun Rights." His Web site is
www.davekopel.org

Make a donation to support Dave Kopel's work in defense of constitutional
rights and public safety.

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